Streeter v. Rolph

• Decision Date: 07 December 1882
• Citation: 14 N.W. 166,13 Neb. 388
• Parties: BYRON STREETER, PLAINTIFF IN ERROR, v. JOHN T. ROLPH, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

14 N.W. 166

13 Neb. 388

BYRON STREETER, PLAINTIFF IN ERROR, v. JOHN T. ROLPH, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 7, 1882

ERROR to the district court for Butler county. Tried below before POST, J.

Judgment of the district court and also the county court reversed and case dismissed.

Matt Miller and Phelps & Thomas, for plaintiff in error, cited Johnson v. Towsley, 2 Neb. 484. 13 Wall., 72.

Russell & Chambers and J. C. Roberts, for defendant in error, cited Randall v. Falkner, 41 Cal. 242. Wilson v Shackleford, Id., 630. Kinney v. Degman, 12 Neb. 237.

OPINION

MAXWELL, J.

This is an action of forcible entry and detention by Rolph against Streeter, to recover the possession of the west half of the northwest quarter of section one in town 16, range 3 east, in Butler county. Judgment was rendered in the county court in favor of Rolph, which was affirmed in the district court. It appears from the record that in 1871 Streeter settled upon the land in question and entered the same as a homestead that in 1876 he made final proof, which entitled him to a patent from the United States, and that he has been continuously in possession of this land for ten years. It also appears that near the close of the year 1876 the commissioner of the general land office attempted to cancel the entry of the plaintiff in error, upon the ground that one Green, in 1863, entered the land as a homestead. This so-called homestead, under which nothing had been claimed for twelve or thirteen years, when the statute requires final proof to be made in seven, is treated by the commissioner as valid, and an entry and settlement, otherwise fair, are sought to be set aside and held for naught. And this, too without any contest or claim of right under the so-called entry. Whether that officer possessed this right or not, is not before the court, but the lands were public lands and open to settlement under the homestead laws, and the plaintiff in error was permitted to enter the same as a homestead and was required to live the full statutory period of five years and make improvements thereon. It hardly seems possible that a filing made thirteen years before, under which no rights were claimed, could defeat this settlement, nor should he be permitted to sustain injury from the default of the General Land Office.

In any event, the plaintiff in error has rights in the land itself which can only be determined in a...